Any liability on part of physician or employer?

A – I’ve always wondered if that would constitute medical malpractice on behalf of the doctor. As for the employer, I think they would only be liable if they failed to comply with 29 C.F.R. §825.301 and .305(a):

An employer may require that an employee’s leave to care for the employee’s seriously-ill spouse, son, daughter, or parent, or due to the employee’s own serious health condition that makes the employee unable to perform one or more of the essential functions of the employee’s position, be supported by a certification issued by the health care provider of the employee or the employee’s ill family member. An employer must give notice of a requirement for medical certification each time a certification is required; such notice must be written notice whenever required by §825.301.

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In the closing argument, counsel for NHB argued that Wilson had failed to establish that he had a serious health condition because he failed to put on testimony from any medical provider, such as Dr. Hakim [plaintiff's gastroenterologist] or any emergency room employee who could corroborate Wilson’s own testimony regarding his condition. NHB’s counsel again referenced Wilson’s failure to call any medical providers to testify when describing Wilson’s failure to meet his burden on the notice element, stating that Wilson was the only witness on his side of the ledger and that he could have potentially called a medical provider.

In rebuttal, Wilson’s counsel argued, “Mr. Romaniuk [counsel for NHB] tells you that we haven’t heard from any doctors. No doctors have been put on here. Ask yourself, what did NHB do to find out what was going on with his condition? The law doesn’t require Mr. Wilson to go in the first sign that he needs leave and carry his whole medical file with him. As the judge told you, he just has to give them enough notice based on all of the information previously available to them for them to wonder[,] does the absence relate to this health condition. And if it does, then the burden shifts to NHB. NHB never tried to call Dr. Hakim to see what was going on to see what they could do.

NHB’s counsel objected to this last statement. The judge summarily overruled the objection and Wilson’s counsel continued: And you even heard me ask [NHB] witnesses on the stand, what did you do to follow up with his doctor? Nothing.

The 11th Circuit court of appeals found that the district judge abused her discretion in failing to sustain NHB’s objection and give a curative instruction. Wilson’s counsel’s comments, offered during rebuttal when NHB had no further opportunity to speak to the jury, went directly to elements of Wilson’s claim that were at issue in this case and contended that NHB should have taken action that in fact would have been prohibited under the FMLA and other laws. (an employer may not request additional information from the employee’s health care provider to verify adequacy of medical certification).

Wilson v. NHB Industries, Inc. (CA 11 2007)

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The employer has two choices when an employee does not provide adequate notice: it may waive the notice requirements or it may delay the employee’s leave. If, during the leave time, it becomes apparent that more or less leave time is needed, the employee needs to provide the employer reasonable notice (i.e., two business days before the extended leave begins) of the change in leave. In this case, the employee gave plenty of notice for extended leave and employer could not terminate employee as a result.

Killian v. Yorozu Automotive, 454 F.3d 549 (CA 6 2006).

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Bruce Rutschke worked for Northwest Airlines, Inc., from March 5, 1965 until his retirement on March 26, 2004. Rutschke worked in several positions during his 39 years of employment with Northwest and spent the last fifteen years of his employment working as an airframe and powerplant technician maintaining Northwest’s fleet of 747′s.

From April 2003 until January 20, 2004, Trenton Fields, the shift manager in the engine sheet metal shop, became Rutschke’s manager. After that point, Rutschke obtained a position in the composite shop and worked there until his retirement on March 26, 2004.

As a result of suffering from diabetes, Rutschke had to take intermittent FMLA leave from work because of fatigue and poor circulation. His ailment also required him to elevate his feet from time to time at work. Rutschke claims that during the time that Fields was his supervisor, Fields harassed him on a continuous basis because of his age, disability and need for FMLA leave.

For example, upon becoming his supervisor, Fields instructed Rutschke to personally notify him whenever Rutschke was leaving work and taking FMLA leave. Rutschke found this inconvenient because Fields’ office was not located near Rutschke’s building. Rutschke considered the requirement unfair because other employees seeking to take sick leave only had to notify the crew chief who was housed in the same building as them. Despite his concern over this additional requirement, Rutschke never complained to Fields about it because his “feeling was [Fields] didn’t really care.”

Rutschke also felt singled out as a result of another requirement by Fields to have him clock out at a different location from where he and his coworkers had normally clocked out, beginning sometime in September 2003. Rutschke was forced to walk an extra distance as a result and received verbal jabs from his coworkers as well. Several days after Rutschke began clocking out at the alternate location, a memo appeared requiring everyone to clock out there although some employees continued clocking out at the old location.

In mid-September 2003, Rutschke sent a complaint to Northwest’s human resources department complaining about the new clock out location and concerning harassment and retaliation of Fields.

Two weeks after his complaint, Rutschke and Fields had a disagreement concerning when Rutschke was to take his lunch break. Rutschke needed to take his lunch break at a certain time because of his diabetic condition, but Fields initially refused this request. According to Rutschke, Fields rhetorically asked him, “What medical condition do you have that you can’t take your lunch at 7?” A meeting among Rutschke, his Union representative, and Fields ensued in which Rutschke’s representative asked Fields, “You mean to tell me you’re going to discriminate against [Rutschke] because he has diabetes?” According to Rutschke, Fields responded in the affirmative. Rutschke did not get the chance to file a grievance because Fields later allowed him to take his lunch at 6:00 as originally requested by Rutschke.

Finally, Rutschke alleged that Fields subjected his work to closer scrutiny than that of other coworkers.

Beginning in 1998, Rutschke was approved for intermittent leave under the FMLA as a result of his diabetes. Northwest approved his request for intermittent leave every year thereafter until December 2003. Rutschke submitted a certification form completed by his treating physician with his request for intermittent leave. The certification indicated that Rutschke suffered from diabetes, that diabetes was a serious medical condition requiring that he take up to 12 weeks of intermittent leave per year. From 1998 through most of 2003, Rutschke took intermittent time off of work which was designated as FMLA leave. Prior to the end of 2003, he took his intermittent leave in half day intervals.

In October 2003, Rutschke submitted a certification from his physician for FMLA leave. That certification stated that the “probable duration of” Rutschke’s “present inability to work” was “[i]ntermittent inability to work from 1 or 2 days to one week.” It stated that the frequency and duration of the current or expected episodes of incapacity was “1-2 day(s) during each … week.” The form also stated that Rutschke was “prescribed medications for diabetes and hypertension.” His certification was initially approved by Northwest.

In December, Fields requested a clarification of the FMLA certification for two reasons. Northwest required two separate certifications for two separate conditions (in this case, diabetes and hypertension). Northwest also wanted clarification on the leave periods of whole days (as set forth on the certification) versus Rutschke’s practice of taking half day periods of leave.

As a result, Rutschke obtained a new certification from his physician that omitted any reference to diabetes and stated that the “probable duration of” Rutschke’s “present inability to work” was “intermittent inability to work from 1/2 day to one week,” and that the frequency and duration of the current or expected episodes of incapacity was “1-4 half day(s) during each … week.”

Northwest determined that the certification was still ambiguous and on December 18, Fields requested Rutschke to sign a release to allow a Northwest doctor to obtain clarification directly from Rutschke’s doctor. Several weeks later, Rutschke indicated that he would not sign the release. Fields then responded that Rutschke’s FMLA eligibility was cancelled. A meeting was held among Rutschke, his Union representative, Fields and two human resources employees. At the meeting, Northwest informed Rutschke that further clarification of his certification form was needed. Northwest was concerned that the certification indicated that Rutschke might have to work part-time, and, if so, an accommodations assessment under the Americans with Disabilities Act might be required.

Rutschke never produced a clarification but continued to take time off from work until his retirement. Fields approved all of the requested time off although not as FMLA leave. Rutschke used vacation and sick time to take the leave.

In February 2004, Northwest followed up with Rutschke in order to move his pending FML forward. Northwest requested further clarification of the doctor’s certification. Rutschke never complied.

After retiring, Rutschke brought suit alleging, among other claims, that Northwest interfered with his rights under the FMLA. After a period of discovery, Northwest moved for summary judgment.

Rutschke’s specific claim was that Northwest unlawfully interfered with his FMLA rights when it refused to authorize his FMLA leave after December 15, 2003. Rutschke claimed that he provided the required certification, obtained clarification pursuant to Northwest’s request but refused to sign a release allowing Northwest’s physician to contact his physician for further clarification. Both Northwest and Rutschke rely on the same regulation to support their opposing positions:

If an employee submits a complete certification signed by the health care provider, the employer may not request additional information from the employee’s health care provider. However, a health care provider representing the employer may contact the employee’s health care provider, with the employee’s permission, for purposes of clarification and authenticity of the medical certification.

Pursuant to the regulation, Northwest argued that it could ask for clarification, however; Rutschke argued that he initially met the requirement for clarification and did not have to do more.

The District Court determined that Northwest could seek further clarification of Rutschke’s certification: ” The certification is inconsistent regarding how much time per week Rutschke may be absent; while the certification states that the “probable duration” of Rutschke’s “present inability to work” was “intermittent inability to work from 1/2 day to one week,” it also stated that the “frequency and duration of the current or expected episodes of incapacity” was “1-4 half day(s) during each … week.” According to the court, this inconsistency permitted Northwest to seek further clarification of the certification form.

Rutschke also argued that Northwest interfered with his FMLA rights by demanding that he sign a release which it could not legally require him to sign. The court found that this was not, in fact, the case. The court pointed to the later correspondence indicating that Rutschke’s FMLA application was still pending and dropping the requirement that Northwest’s physician confer with Rutschke’s physican. Instead, Northwest again asked Rutschke to obtain the clarification.

Rutschke made one final argument concerning FMLA interference by claiming that Northwest’s motivation was to claim confusion over the certification under FMLA as a pretext to allow the company’s doctor to state an opinion that Rutschke was only able to work part-time. The court noted that even if true, its determination of whether Northwest interfered with Rutschke’s FMLA rights does not hinge on an analysis of Northwest’s motives.

Rutschke’s undoing resulted from his failure to cooperate with Northwest because of his impending retirement. He figured, why bother complying with Northwest’s demands when he would soon be leaving the company anyway and could use sick leave and vacation time to satisfy his intermittent leave requirements. Employees should make every effort to cooperate in the FMLA leave process despite what may seem to be red tape thrown up by the employer to inhibit the process. What may seem to be unnecessary may later prove to be required.

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